Gunowner Privacy and the Second Amendment

[This is a guest post based on a paper that was presented at the 2023 Firearms Law Works-In-Progress Workshop.  The Workshop is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center.  This post does not necessarily represent the views of the Duke Center for Firearms Law.] 

In dueling cases in state and federal courts in California, courts are deciding whether California gun owners have the right to prevent University researchers from accessing personally identifying information tied to their gun ownership and use of firearms. California’s Assembly Bill 173 (2021-22 Regular Session) (“AB 173”) directed the Department of Justice to provide certain qualified firearms researchers data about firearm transfers, and personally identifying information of gun owners and applicants for concealed carry permits, which allows detailed research into the effectiveness of gun violence prevention policies. Pursuant to this law, DOJ provided gun owner data to the California Firearm Violence Research Center at UC Davis and to researchers at Stanford beginning in 2021. This data has allowed them to conduct research that no other organization in the country is able to perform, including following cohorts of gun owners over time to identify which policies might empirically reduce gun violence. Research like this is needed, especially when the CDC’s recently released provisional data for 2022 shows that gun suicides reached an all-time high, guns continue to be the leading cause of death for children and teens, and 2022’s rate of gun deaths remains consistent with the spike that occurred during the COVID-19 pandemic, representing a 21% increase in gun deaths since 2019.

Not everyone agrees. After California’s DOJ shared this data with researchers, a group of anonymous California gun owners sued in federal court and a firearm owner and several gun rights organizations sued in state court. The plaintiffs in federal court argue that AB 173 violates their right to privacy under the Second and Fourteenth Amendments. In state court, plaintiffs allege that AB 173 violates the Second Amendment and the California Constitution, which includes an express right to privacy that the federal Constitution does not. Plaintiffs’ Second Amendment claims are brought under the federal Constitution, as California’s Constitution does not have a stand-alone provision protecting the right to keep and bear arms.

Before the Supreme Court issued New York Rifle and Pistol Ass’n Inc. v. Bruen, courts denied claims that the Second and the Fourteenth Amendments include any right to privacy over a personal decision to use or own a gun. The Eleventh Circuit also struck down a Florida statute created to protect gun owners from being questioned about gun ownership and use by doctors, holding that the law violated the plaintiff-doctors’ First Amendment rights. Of course, Bruen has given new life to a raft of Second Amendment challenges. Furthermore, days after Bruen was decided, the California Department of Justice unintentionally released certain California gun owner data publicly, highlighting a potential consequence of collecting and analyzing personal gun owner data. (Note, however, that the researchers granted access under AB 173 were not involved in the data breach, and the California Department of Justice would have had access to the inadvertently released data regardless of AB 173.)

Perhaps underscoring the difficulty these questions present, the initial decisions from the two courts have reached conflicting outcomes.  In the federal case, a judge in the Southern District of California granted the California Attorney General’s motion to dismiss the complaint in full.  Meanwhile, the state court granted plaintiffs’ motion for a preliminary injunction based on the California Constitution’s privacy provision. The injunction has prevented researchers from obtaining updated data but allows them to continue to utilize data they have already received. Both cases are proceeding on appeal.

The paper that I presented at the 2023 Firearms Law Works-in-Progress Workshop in June examines whether the Second Amendment, as interpreted by Bruen, protects a right to privacy over individual decisions to own, possess, or carry a firearm. My preliminary analysis suggests that while states can, and have, adopted policies, laws, or constitutional provisions granting privacy rights to gun owners that go beyond what is protected by the Second Amendment, the Second Amendment itself likely does not encompass a privacy right over the individual decision to own or use a firearm.

Pursuant to District of Columbia v. Heller, and reiterated in Bruen, constitutional rights have the scope “they were understood to have when the people adopted them.” Starting with the text, the Second Amendment itself says nothing about gun owner privacy. Moreover, several categories of historical laws demonstrate that gun owners did not have an expectation of privacy at the time of the Founding or at the time the states ratified the Fourteenth Amendment. Governments routinely required those serving in the militia to present their weapons for inspection and to appear in public to train with their arms. New Jersey’s 1778 Session Laws provided that a sergeant would enter the homes of militia members to inspect their arms every four months. South Carolina’s 1791 militia law required able bodied men to appear at muster and have their weapons evaluated; participants were fined if their weapons were not available. A 1799 Kentucky law required inspection of weapons at muster. Militia officers were required to report on the available arms in their command to assess the strength of available weaponry. The official manual for the U.S. Army and many state militias from 1779 until the War of 1812, Friedrich Wilhelm Baron von Steuben’s Regulations for the Order and Discipline of the Troops of the United States (1779), required daily inspection of weapons for those in service, and provided that those who had lost, sold, or damaged their weapons be fined.  That militia laws around the time of the Founding often required official inspection of arms brought from home should not be surprising, especially given the shortage of arms in the U.S. during the Revolutionary War and concerns about militia effectiveness. 

Similarly, laws outside the militia context suggest the Second Amendment historically did not include a right to privacy when keeping or bearing arms. Public carry laws often required public disclosure to be able to carry. In the Reconstruction era, an 1873 New Jersey law required those who wished to carry weapons in public to make a request for a permit “in open court.” Several states required any carry to be done openly, and prohibited concealed carry, to allow others to be warned as to who was armed. Historical laws also required public disclosure of weapons for taxation purposes, such as Maryland’s 1858 law requiring pistols to be “annually listed” and taxed. This law explicitly applied to weapons used outside of militia service, as arms “used for mustering” were exempt.

These historical laws, among others, suggest that, at the time the Second and Fourteenth Amendments were adopted, those exercising the right to keep and bear arms did not expect their use or ownership of firearms to be kept from the government or from fellow community members. Laws like AB 173 do not directly regulate any individual’s exercise of the right to keep and bear arms. Application of Bruen’s text and history test, then, suggests that the Second Amendment did not protect a right to keep one’s exercise of that right private at the time of the Founding or thereafter, and thus it does not fall within the Second Amendment’s protections today. 

States may, of course, still choose to adopt privacy protections for those keeping and bearing arms. As the California DOJ’s inadvertent disclosure shows, where gun owner data is collected and used for public safety purposes—either to support criminal investigations by law enforcement or to identify policies that will empirically reduce gun deaths, injuries, or trauma—inadvertent disclosures of personally identifiable data may occur. I routinely hear from gun rights supporters who argue that allowing either the government or the public to access personally identifiable data of gun owners or permit to carry applicants carries a risk that those individuals will face discrimination, particularly racial minorities who have faced historic mistreatment by law enforcement.  Others assert that public dissemination of gun ownership data makes gun owners targets for home invasion and theft. While these considerations may provide policy reasons to protect gun owners’ privacy, they do not show that the Second Amendment itself grants individuals a privacy right over the decision to keep or bear arms. States can then evaluate whether these risks are outweighed by the benefit of using gun owner data to improve gun violence prevention research, as California did in enacting AB 173.